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Todd Rosenbaum

Member / Co-chair, Class Action Practice

[email protected]

+1.202.434.7411 Washington, DC

+1.212.692.6819 New York

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As a Member in the firm’s Litigation Practice and Co-chair of the Class Action Practice Group, Todd maintains a nationwide practice, encompassing a diverse range of general commercial litigation, including contractual disputes, corporate governance disputes, class actions, with a particular focus on American Disabilities Act (ADA) and data privacy claims, financial services-related litigation, as well as white collar crime and government investigations. He has been an integral member of teams representing clients at the trial and appellate court levels, and at mediation and arbitration.

He regularly advises clients in class action disputes involving consumer, privacy, contract, unfair trade practice, and discrimination claims. He has helped both public and private companies in a variety of sectors including transportation, life sciences, hospitality, higher education, health care, and retail and consumer products navigate the complexities of class actions at all stages of litigation, including discovery, motion practice, and trial.

Todd has developed a niche representing clients facing claims for violations of the ADA and similar state and local laws, including California’s Unruh Civil Rights Act. In this role, he has counseled dozens of clients with respect claims concerning both physical accessibility and website accessibility. As part of his practice, Todd also regularly counsels clients on ADA compliance by helping them to create internal compliance programs, liaising with consultants on appropriate technical remediation and strategizing on risk mitigation to avoid future claims.

He also maintains a robust complex commercial litigation practice, counseling clients in the insurance and financial services, life sciences, technology, health care, sports and entertainment, and real estate industries in all manner of business disputes, including breach of contract, breach of fiduciary duty, and shareholder derivative actions, as well as legal malpractice disputes.

Todd has a strong commitment to the firm’s pro bono efforts and represents clients in a variety of immigration and other matters. He has previously served on the firm’s Pro Bono Committee.

During law school, Todd was a notes editor for the Journal of Legislation and Public Policy and chair of the Health Law Society. Prior to law school, he was a Teach For America corps member and taught upper elementary school in East Harlem.

Experience

Representative Matters

  • Secured summary judgment in New York State Supreme Court Commercial Division on behalf of RxSense, a pharmaceutical benefits manager software developer, in a complex contract and licensing dispute with a vendor.
  • Represented an individual in a breach of contract action brought against a US-based consumer products company and its Chinese parent company over nonpayment of commissions. Successfully defended against a motion to dismiss and ultimately reached a favorable settlement on behalf of our client.
  • Defends dozens of companies in numerous industries against class actions claiming ADA violations at their physical locations and on their websites, and counsels them on ADA compliance and risk mitigation.
  • Secured summary judgment in the US District Court for the Southern District of New York on behalf of the Triborough Bridge and Tunnel Authority in a class action alleging that defendants’ use of a cashless tolling system led to the assessment of violation fees without adequate notice or constitutional due process.
  • Secured a $6.26 million judgment after a November 2021 trial in New York State Supreme Court on behalf of an investment banker client after his decade-long battle with his former fiancée over an investment property in the Hamptons. The jury returned a unanimous verdict and awarded our client the full amount of damages sought after a seven-day trial.
  • Represented professional basketball franchise in intra-league dispute, securing favorable settlement outcome.
  • Successfully appealed decision dismissing investment funds’ action for legal malpractice and breach of fiduciary duty against former counsel.
  • Conducted audit committee investigation into improper revenue recognition activities at public life sciences company.
  • Conducted internal investigation into payroll fraud, accounting fraud, and FCPA violations at public company with retail operations throughout Central America and the Caribbean.
  • Represents the world’s largest stock transfer company in securities and contract litigations.
  • Represented diverse financial companies in litigation proceedings concerning losses related to a Eurobond default.

Pro Bono

  • Secured asylum victory in Immigration court for client who fled El Salvador on account of threats of gang violence.
  • Successfully petitioned for multiple teenage clients in removal proceedings to receive Special Immigrant Juvenile Status and obtain Lawful Permanent Residence.
  • Secured asylum victory in Immigration Court appeal for client whose affirmative asylum application was denied because he had missed the one-year filing deadline.
  • Represented leading environmental organizations, including the Sierra Club, in constitutional litigation brought against the New York State Department of Environmental Conservation and other state agencies to prevent exploratory drilling in New York’s Adirondack Forest Preserve.
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viewpoints

As discussed in earlier posts, the Federal Arbitration Act (“FAA”), 9 U.S.C.  § 1, et seq., does not provide an independent basis for federal subject matter jurisdiction over federal court proceedings concerning domestic arbitrations.  See Vaden v. Discover Bank, 556 U.S. 44, 50 (2009).  (In the case of international and non-domestic arbitrations, where the New York Convention applies, FAA § 203 (9 U.S.C. § 203) establishes a federal district court’s subject matter jurisdiction.)  Thus, absent diversity jurisdiction in the judicial proceeding in question, a petitioner must show federal question jurisdiction under 28 U.S.C.  § 1331 in order to bring an application to confirm, vacate or modify a domestic arbitral award in federal court.  But, as is frequently the case in the United States regarding such jurisdiction issues, the Federal Courts of Appeals are split on how that can be done.
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For an arbitration agreement to be enforceable, the parties must have a reasonable opportunity to understand its terms.  See Fagerstrom v. Amazon.com, Inc., 141 F. Supp. 3d 1070 (S.D. Cal. 2015).  With this principle in mind, the U.S. Court of Appeals for the Ninth Circuit commented in 2006, regarding the enforceability of an arbitration clause that was prominent in a contract, “You’d have to be blind to miss this warning.  There was no surprise here.”  Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1309-10 (9th Cir. 2006) (en banc) (emphasis added).  But what if the plaintiff in Nagrampa had been blind, or was otherwise unable reasonably to read, or to understand, or to appreciate the significance of the arbitration clause by virtue of a disability or a more temporary impairment?
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In a previous post, we addressed what may happen when a defendant in federal litigation seeks to compel arbitration under Ch. 1 of the Federal Arbitration Act (“FAA”), 9 U.S.C. § 4, but the applicable arbitration agreement specifies a place of arbitration that is outside the geographic jurisdiction of the federal court.  (See https://www.mintz.com/insights-center/viewpoints/2017-07-spectre-haunts-motions-compel-arbitration-venue.)  But what approaches are available to a defendant when a plaintiff files suit in a state court, the claim is subject to an arbitration agreement, and the agreed place of arbitration is in a different state? 
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As discussed in an earlier post, obtaining discovery from a non-party to an arbitration often is easier said than done. Depending on the law of the place of arbitration, arbitrators may not be able to compel document production or testimony from a non-party before a hearing on the merits.
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Litigators in the U.S. often take for granted the ease with which they can obtain discovery from non-parties in our federal and state courts. One might assume that the “presumption in favor of arbitrability” embodied in the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (“FAA”), would have been implemented with, among other things, a statutory grant of subpoena power to arbitrators that is virtually coextensive with that of a federal district court. 
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When a claimant who is party to an arbitration agreement initiates litigation of arbitrable claims, the defendant in that case typically expects to be able to move successfully to compel arbitration under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 4.
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In most countries, it is uncontroversial that a court sitting at the situs of an arbitration has jurisdiction to adjudicate a petition to confirm or vacate or modify an award issued in that arbitration. In the United States federal courts, however, the mix of issues concerning subject matter jurisdiction and personal jurisdiction, respectively, has made for bewilderment galore.
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Last month, we described the split among Federal Circuit Courts regarding the question of whether the Federal Arbitration Act (“FAA”), 9 U.S.C. § 3, mandates a stay rather than dismissal of a judicial proceeding after a district court compels arbitration of all of the claims in an action before it.
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Under the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq., if a District Court compels arbitration of all of the claims that are before it, and thereupon dismisses the suit, its order compelling arbitration is final and appealable; but if the District Court stays the suit, its order compelling arbitration is “non-final” and not immediately appealable.
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Events & Speaking

Speaker
Apr
6
2022

Telehealth Risk Management

Mintz

Online Event

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Recognition & Awards

  • Chambers USA: New York – General Commercial Litigation: Up and Coming (2022 – 2023); Associate to Watch (2021)

  • Benchmark Litigation: Future Star (2026-2027)

  • Benchmark Litigation: 40 & Under Hot List (2022 – 2024)

  • Kids In Need of Defense, Pro Bono Spotlight Attorney (2019)

  • New York City Family Court Volunteer Attorney Program, Pro Bono Service Award (2014)

  • Epstein Becker & Green Health Law Writing Competition, Second Place (2011)

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Involvement

  • Member, New York State Bar Association
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Todd Rosenbaum

Member / Co-chair, Class Action Practice

Washington, DC New York